Cross examination is expected to be the most dramatic part of any trial; it's where Perry Mason extracted confessions from the main witness, where Jack McCoy pummels the defendant's alibi, and, indeed, it's where most real life criminal trials are won or lost.

For a civil or criminal case to go to trial, there must be at least one witness who will stand up and say they saw or know that the defendant did something wrong. It's thus no accident that criminal defense attorneys are cross-examiners, as they rarely have the same opportunity as civil defense attorneys to raise doubt by arguing that, even if the facts as alleged are true, their client either did nothing wrong or was not the cause of the harm suffered by the plaintiff. Even in the Fumo trial, where his attorney has argued that the misuse of Senate resources was not a crime, Fumo cannot take the chance the jury will believe the facts alleged by those staffers.

For criminal defense lawyers, if they cannot cast doubt on the testimony by the prosecution's witnesses, then they will lose, pure and simple. They have no choice but to attack everyone who testifies against their client.

So it has been in the Fumo trial. As I wrote before, it is a bit of a mystery why the United States Attorneys began their case with the testimony of Christopher Marrone, given how, as Fumo's estranged son-in-law, he transparently hated Fumo and had strong reasons to exaggerate -- possibly even fabricate -- his testimony. As expected, Fumo and Arnao's lawyers, who spent several hours on Marrone's relationship with Fumo and his unseemly decision to retain hundreds of incriminating e-mails for the apparent purpose of later retaliating against Fumo. As prosecution witnesses go, he was an easy target.

Now the US Attorneys have turned to witnesses who remained loyal to Fumo until the criminal indictment, witnesses with far less obvious reasons to be untruthful. Witnesses like Howard Cain, a long-time political consultant to Fumo who has just testified to doing extensive political work on behalf of Fumo while on the Senate's payroll.

Cain, however, walks into the courtroom as tainted goods: Cain spent the better part of a decade failing to file taxes, has pled guilty to tax evasion, and cooperated with the government here in exchange for favorable consideration in his own sentencing. To Dennis Cogan and Ed Jacobs, Cain is a rat, a tax cheat trying to save his own skin by selling Fumo down the river. Their job is to make the jury see Cain the same way.

How do they do that?

The basic tool in the trial lawyer's cross-examination box is impeachment by prior inconsistent statement. In the Fumo trial, those prior inconsistent statements have come largely from FBI interviews with the witnesses before trial, which Fumo and Arnao's lawyers have reviewed carefully, organizing and memorizing every detail just in case the witness's testimony at trial differs from those statements and interview notes. The defense lawyers can use those prior inconsistent statements in three ways.

First, they could get lucky. Perry Mason could get a prosecution witness to implode on the stand, break down, and confess everything. Mere mortals like Dennis Cogan and Ed Jacobs cannot, not unless they're lucky. Rarely does the actual culprit take the stand in a criminal trial as a witness and then, against all reason and sense, confess on the spot.

Second, they could find a smoking gun. If a trial lawyer catches a major inconsistency -- like a witness testifying about an event they could not possibly have seen -- then the task becomes comparatively easy, and the trial lawyer can slowly hand the witness enough rope to hang themselves with, calling into question their entire testimony. You can often see these moments coming: look for a cross examining attorney to fixate on a handful of banal details, so much so that the court may intervene to instruct the attorney to move on, after which the attorney reveals that the banal details, which have now been burned into the jurors' brains, could not possibly be true.

Third, and most commonly, they can fight it out. The two "rules" for cross examination are well-known and taught at every law school. Use leading questions only (i.e., questions with a yes or no answer), so that the witness will not have a chance to tell their story again. Do not ask any questions for which you do not already know the answer.

That is the safe option. Do that as a trial lawyer and you will not be sued for malpractice. No one will blame you when your client loses.

Do that in a difficult case -- Fumo has a very difficult case -- and you will lose.

Jurors want drama. They want a fight. Some lawyers and commentators blame television shows and movies for the jury's expectation that the criminal defense lawyer will assault the prosecution's main witnesses, but I believe the situation inherently demands drama. If the witness is calling your client a criminal, you have no choice but to call them a liar and to prove it.

How do you prove it?

Timing.

If you can understand the difference between Humpty Dumpty and Socrates, you can understand the difference between direct and cross-examination. Cross examination leads, direct examination builds.*

We will come back to this subject in future posts. For now, let's focus on Cogan's initial cross-examination of Cain. Cogan did not rise, say good afternoon, and call Cain a rat. First came the challenge to Cain's credibility and truthfulness: the plea agreement and his tax evasion. Then came a prior inconsist statement: Cain's testimony about a Verizon meeting differed from what he told FBI investigations. Then came a challenge to the substance of Cain's allegations: Cogan walked Cain through multiple invoices Cain had submitted showing extensive work for the Senate, work that would have been entirely appropriate under the rules.

Only then, after Cain's credibility had been attacked, and after the jury had seen a clear inconsistency, and after the substance of his testimony had been called into question, came the accusation: "are you making all of this up?" At that, Cain became combative and evasive.

From there, it was all downhill, and he's been pummeled on the stand ever since. The question will be if Cogan and Jacobs can maintain this intensity as the US Attorneys move forward into witnesses with stronger allegations and fewer weaknesses.

* I paraphrased this great example and description from a story about Chicago legend Oliver Frank told by Thomas Anthony Durkin in the exceptional cross-examination book "Your Witness" by Steven Molo and James Figliulo.